Posted on February 21, 2024 by Liam Mulligan and Thuy Pham 5

Interim Heritage Orders: When is an Item ‘likely to be harmed’?

Interim Heritage Orders (‘IHOs‘) are orders commonly made by local councils to preserve the status quo in respect to items of potential heritage value which are not formally protected as heritage items. In certain circumstances, IHOs can be a potentially useful tool for local councils to preserve items of potential local heritage value, which are not otherwise protected, whilst their value is being investigated.

Under the Heritage Act 1977 (NSW), the making of an IHO generally requires the satisfaction of two conditions:

1. the item is one which, “likely to be found on further inquiry or investigation“, to be of local heritage significance; and
2. the item is being or likely to be harmed.

The question of when an item is likely to be harmed was recently considered by a Commissioner of the Land and Environment Court in The Trustees of the Roman Catholic Church for the Diocese of Broken Bay v Willoughby City Council [2024] NSWLEC 1010 (‘Broken Bay‘).

In summary, the circumstances were:

1. A development application (‘DA‘) was lodged in November 2021 seeking consent for, among other things, the demolition of several school buildings in Naremburn, NSW.
2. The DA underwent a lengthy assessment. In May 2023, prior to the DA being determined, an IHO was published in the NSW Government Gazette.
3. The DA was later refused by the local council and a Class 1 application was brought in the Land and Environment Court appealing against Council’s actual refusal.
4. An appeal was also brought against the making of the IHO.

As at the date of the decision before Dickson C, the Class 1 application was not yet determined.

In the IHO appeal, the Court accepted that the school buildings met the threshold for listing at a local level for social, cultural and spiritual significance.

However, the principal question for consideration was whether the second precondition to the making of the IHO had been engaged – that is, was the item being harmed, or likely to be harmed?

On the issue of the likelihood of harm, the applicant argued that:

• As at the date the council resolved to issue the IHO, the only factual basis for considering that the building was “likely to be harmed” was the DA;
• Any such “likelihood” necessarily assumed that development consent for the demolition of those buildings was likely to be granted or should be assumed to be granted;
• In the circumstances where the DA had been refused, there was no foundation for consideration that the buildings were “likely to be harmed”;
• Accordingly, there was no basis for considering that the school buildings were likely to be harmed.

The Court did not accept the Applicant’s arguments.

Instead, the Court held that, as the Class 1 appeal had been lodged, the DA had not yet been finally determined. If the DA were to be approved by the Court, which remained a possible outcome, then the demolition proposed in the DA would constitute harm to the item the subject of the IHO. On that basis, the Court found that the element regarding the likelihood of harm was satisfied.

In coming to this conclusion, Dickson C followed the findings in Beaches Capital Ventures Pty Limited v Wingecarribee Shire Council [2022] NSWLEC 1504 (‘Beaches Capital‘). In that case, the Court found that the land would remain at risk of harm even in circumstances where the land was sold to a new owner, who then withdrew the development application. We discussed Beaches Capital in this article here.

The decision provides further clarification around the meaning of “likely to be harmed” in the context of IHOs.

A link to the full text of judgment in Broken Bay is at The Trustees of the Roman Catholic Church for the Diocese of Broken Bay v Willoughby City Council [2024] NSWLEC 1010.

If you have any questions regarding this article, please leave a comment below or contact Liam Mulligan on 02 8235 9715 or Thuy Pham on (02) 8235 9731.